The parasite, for-profit, bail bond industry, one of the most nakedly exploitative forms taken by capital, now struggles with the forces of the people in the state of Connecticut. This is the latest development in an 80-year-long war between the people and the capitalist state that began in the 1960s with the first wave of bail reform.
The Connecticut Supreme Court released a decision last week, State of Connecticut v. Qinxuan Pan (SC 210039), granting all prisoners in Connecticut held on bond the right to seek a full evidentiary hearing at some point after their arraignment where they are permitted to present evidence regarding their lack of ability to afford their bail bonds. The courts are now required to consider that evidence and give a fully-articulated ruling as to whether and why the bonds will be reduced or will remain as set. This represents a new front in the war against the evil practice of cash-and-surety bail, which has been flaring up and dying down in Connecticut over the past decade.
A Background on Bail
As far back as the Anglo-Saxon law codes, arrestees were “set free as soon as some sureties undertook or became bound for his appearance in court.” Bail was further legislated by the 1275 Statute of Westminster, which established three governing criteria to bail: 1) the nature of the offense (some offenses were not bailable), 2) the probability of conviction, and 3) the criminal history (“ill fame”) of the accused.
The English colonies that would become the United States tended to grant the right of bail — that is, the temporary payment of some amount of money to the court to guarantee the appearance of the accused — almost sacrosanct dimensions. The 1641 Body of Liberties of the Massachusetts Bay Colony granted the right to bail for all non-capital (that is, punishable by death) cases. In Connecticut, there is an absolute right to a “reasonable” bond (that is, amount required for bail) in almost all cases.
Bourgeois legal scholars are often content to trace this history, then sit back and wipe their hands, happy that they’ve discovered some ancient authority for the present day. What they rarely do is undertake the question of what this custom or law looked like in practice in, for instance, Anglo-Saxon England and compare it to what the custom or law looks like in the U.S. Empire today. It is easy, and perhaps natural, to assume that the concept of bail simply continued from its original date to the present, altered here and there as required, but essentially propelled forward by the inertia of its own history.
That’s an ahistorical understanding of the law. It ignores the context of how the law functions, it ignores the real and practical effects of the law, and it instead merely interprets the written word as it is written down without an examination of actual practice. We Marxists can and must do better than these bourgeois legal historians!
Bail in Anglo-Saxon (and later, Norman) England served one purpose; bail in the modern U.S. Empire serves another. There are a whole host of ancillary questions not answered by this gloss: what kinds of bail were and are required? Who would post them? What was society like, and how did the judges determine amounts? Who were the judges? What classes of people were bailable?
The bail of Anglo-Norman England identified by the legal historians is, in effect, something completely different and distinct from the practice now current in the U.S. Empire. Bail in the medieval past was a matter of elite connections; medieval society was riven with conflicts between families and their larger units, clans. Bail was, in essence, the pledge of a family or network of social peers that you were as good as your word. Under the Anglo-Norman system, the amount required for bail was the same as the amount at stake in the case; every crime was conceived of as a private wrong of one against another, and every type of crime could be translated into a monetary amount. Bail, in this instance, wasn’t merely the pledge of the accused, but the pledge of the entire kin-group of the accused.
But what is bail today?
Firstly, no longer are bonds posted or sureties pledged by communities or kin-groups. No, instead there is a whole industry that has transformed the freedom of the accused into a kind of commodity. A bail bond has become nothing more than a personal mortgage, a lien against the freedom of some individual defendant’s life.
Bail bonds are underwritten by international insurance agencies; Tokio Marine America, Fairfax Financial Holdings Limited, R&Q Accredited Surety, Endeavour, Bankers Financial Corporation, Allegheny Casualty, Financial Casualty & Surety, Lexington International, and the American Surety Company are the largest insurance companies which may be backing nearly a billion dollars in bail bonds each. Regulations don’t require these companies to disclose their underwriting of bail bonds, but it’s likely that between them they account for more than half of the $14 billion bail bond industry. These international finance giants prey on the poorest parts of the working classes, and disproportionately on Black, Chicanx, Latinx, and Indigenous persons.
Bail bonds are extraordinarily high; they aren’t set at amounts that any reasonable person could afford to post for even a short period, let alone lose. Bail in Connecticut is routinely set at $10,000 and higher. Yes, a federal law makes all bail set at $20,000 or lower postable with 10% of the amount put up in cash, but paying $1,000-$2,000 to make sure you or a loved one stays out of jail is not within the reach of most working class families.
If the amount of bond is over $20,000, the law prevents private individuals from posting it. They literally could not, even if they had the money. The bond must be what’s called a “surety bond,” something postable only by a specially licensed “professional” who pays the state a kind of rent in the form of a licensing fee — in other words, a bail bondsman. This bail-for-hire scheme turns the old English system entirely on its head. Rather than a social pledge to attend trial, bail becomes a sort of judicial tax. Bonds are now set in courts in most states across the U.S. Empire; these bonds by and large require the accused to hire a bail bondsman or else suffer the debilitating effects of incarceration while their cases remain pending. Criminal cases can take years to resolve, and even longer if the accused is actually proveably innocent, because wait times for trials have shot up during the COVID pandemic.
But these bondsmen, these mercenary pocketbooks, aren’t the only people making money off of this system. No, as we mentioned above, international insurance underwriters reap enormous rewards. When a bondsman is hired to post a bond, that bondsman charges the accused whatever rate the bondsman thinks he can get. In return, the bondsman puts up a surety with the court. So, for instance, if the bond is set at $100,000 and the accused has a low or moderate-paying job, the bondsman may ask for $15,000. The accused agrees to a payment plan for this money, usually asking for help from family and friends. The accused will never get this money back. The bondsman then places $100,000 in surety with the court. When the case ends, the bondsman gets his money back.
The only time the bondsman would lose his money is if the bond is “called” (that is, the defendant fails to appear) and the bondsman doesn’t bring the defendant into court later. The bondsman is empowered to run out and use physical force and almost any type of restraint to bring the bail-skipping defendant in. When he does, he recoups his entire posted amount. The defendant will never see the money they paid again.
This is the system that international financiers can’t wait to get their hands in: a system which, due to many factors including disparate policing and disparate bond decisions by judges, impacts Black, Indigenous, Latinx, and Chicanx persons far more than white persons, and the poor far more than any other group overall. Cash bail transforms the court system into a debt trap designed to keep the poor and persons of oppressed nations in bondage.
As an aside, the jury system itself can be seen as following a similar development. Early juries were specifically made up of one’s fellow community members — people who actually knew information about the cases because they lived and worked alongside those who were being brought to trial. They have become, under the bourgeois state, a method of white-washing the capitalist’s twisted “justice” by passing it off as the acts of “the people;” jury trials today stand as the most horrific perversion of justice, where they cloak the naked domination of the capitalists, and tell the masses that they are, in a sense, oppressing themselves.
The Struggle Against Cash Bail
The rapacious greed of the for-profit bail industry doesn’t harm only the poorest segments of the working classes; predatory bondsmen are dangerous to the petit-bourgeoisie and, occasionally, to elements within the bourgeoisie itself. For decades, progressives and true radicals have been united in waging a war against the oppressive use of cash bail. The first wave of bail reform emerged in the 1960s and was largely driven by Communists. The second wave of bail reform emerged in the 1980s and was driven by reactionaries who wanted to jail “dangerous” persons indefinitely and without bail. The arguments to return to a for-profit bail system came from the same place in both instances: the U.S. Empire’s for-profit bail industry itself.
New York State began the opening front for the third round of bail reform that is now mounting. Local activists, prison abolitionists, the ACLU, etc. rallied together to pass a new piece of legislation in New York which divides all cases into one of two categories: so serious as to require bail, and not so serious as to require bail. As a result, hundreds of people who would otherwise have been held on cash bonds have been released.
This struggle is on the frontlines of the movement. Over the past century and a half, the capitalists have perfected their machine of oppression. During the latter half of the 20th century the capitalist state has colonized the country with labor camps, ensnared every city and suburb in a net of police officers, has enlisted an army of spies and saboteurs, and has armed all of its agents with implicit death warrants. This enormous expansion of the state, this consumption of almost every regular function of the capitalist government, has had one overriding source above all other sources: the threat of national self-determination, of the revolution and class consciousness of the nationally oppressed. The fight against this enormous, titanic, all-encompassing system of incarceration, at any level, is the fight against the capitalist state itself.
This fight is as acute in Connecticut as anywhere in the U.S. Empire. Although a mere 14% of the state’s population is Black, Black persons account for 41% of the state’s inmates. Bail reform is a front in the overall war against the carceral state and those who profit from it. By reducing the obscene profits of the bail system, the capitalists themselves are weakened and the nationally oppressed communities gain breathing space to organize against their enemies.
Victory – Of a Sort
Political victories are won by the mobilized and militant working classes, this much is true. Nevertheless, the ruling of the Supreme Court of Connecticut in State v. Pan is a judicial decision, not a political one. Though it is not an out-and-out victory, it represents a partial retreat of the capitalists from their long-held position defending the obscenity that is the system of cash bail. A rising tide of awareness produced real, radical victories in the neighboring states of New Jersey and New York; that tide can be harnessed by the organizers and activists of Connecticut to do battle against the bail system.
Although State v. Pan grants criminal defendants some recourse to fight back against the unfair bail system, like most judge-motivated reforms it is more appearance than substance. It purports to give a meaningful way to challenge unreasonable bonds set by the arraignment courts, but in actuality the hearing Pan grants will mostly result in the same outcomes as the present bail hearings: the judge will deny the modification of bail, regardless of the evidence the defendant manages to put on. Now, the judge will have to be more explicit about why they are not changing the bond amount, but that is a cosmetic change at best.
Lawyers, even more than members of other petit-bourgeois professions, tend to be mired in idealism. “These gentlemen think that when they have changed the names of things they have changed the things themselves,” as Engels would say. Pan has only just gone into effect, but there should be no doubt that, in a year’s time, we will not see substantially more people released on lower bonds as a result.
Is there a chance that a new hearing under Pan will result in a bond being lowered? Yes, of course. Is a significant change in incarceration rates going to occur? No, most likely not. This individualist, idealist thinking is part of the smoke-and-mirrors show practiced by the bourgeoisie to convince the working classes that proceedings are fair and aren’t tilted against them. The Pan hearing amounts to little more than the show put on by the snake oil salesman before he fleeces his audience.
What the Pan decision does not say is that if a defendant can’t afford to post the bond the court sets, then the bond is per-se unreasonable. This is the first step to real bail reform in Connecticut. A $5,000 bond is nothing to a Groton defense contractor accused of drunk driving and assault with a motor vehicle, but to an unhoused person in New Haven a $5,000 bond may as well be set at $5 million. There has long been a movement among the socially conscious lawyers of Connecticut to have the courts recognize that, in order to be “reasonable,” bond amounts must be actually postable by the actual defendant.
What we can take from the Pan decision is that the growing wave of class consciousness is impossible to ignore even from the heights of the Supreme Court of Connecticut. This a kind of victory, but the victory we should see is that the justices of the Connecticut Supreme Court believe it’s become necessary to disguise the operations of predatory capital. That means they know the working classes are becoming more powerful, more united, and more militant. That is exactly why they are making these concessions.
As the murderous results of the Biden regime’s COVID handling become clearer, as Connecticut landlords once again begin to ramp up evictions in the face of the failing resolve of Governor Lamont’s administration to protect the poorest segments of the population, more and more class warfare will break out into the open. The Supreme Court of Connecticut recognizes this; State v. Pan is a tacit acknowledgement that the capitalist state must retreat from its maximalist position and adopt a defensive posture. They are preparing their defenses, hoping the tidal wave of class consciousness will break.
We will all work diligently to ensure that these last-ditch sea walls are overwhelmed.
